
The National Labor Relations Board (NLRB or the “Board”) has yet again reversed precedent and created a new employer-friendly rule regarding non-employees engaging in leafletting on an employer’s premises. In a prior 2011 decision involving the New York New York Hotel in Las Vegas, the Board had held that employers could only prohibit leafletting by non-employees on the employer’s property when such activity would “significantly interfere” with the employer’s use of the property. This was a difficult standard for employers to meet, and, fortunately for employers, they may now have greater flexibility.
On August 23, 2019, the NLRB decided Bexar County Performing Arts Center d/b/a Tobin Center for the
Performing Arts, 368 NLRB No. 46 (2019). The Board overruled New York New York and held that a
property owner not involved in an underlying labor dispute could prohibit
leafletting and similar protected activity by off-duty employees of a licensee
or contractor performing work on the property owner’s premises. In Tobin Center for the Performing Arts,
the respondent property owner operated a performing arts center that was used
by several groups, including the San Antonio Symphony and Ballet San Antonio. During a performance by Ballet San
Antonio, San Antonio Symphony musicians passed out leaflets accusing Ballet San
Antonio of depriving them of work by performing to recorded music rather than
with live accompaniment. The property owner refused to allow the musicians to
continue leafletting and kicked them off the property.
An NLRB Administrative Law Judge (ALJ) found that the
property owner violated the National Labor Relations Act by prohibiting the
leafletting, but the Board reversed. Notably, the Board held that non-employee contractors
and licensees do not possess the same Section 7 access rights as a respondent’s
own employees. Therefore, the Board reasoned, the off-duty musician contractors
were trespassers and only allowed to engage in the on-premises leafletting if
they did not have any other “reasonable alternative nontrespassory channels of
communicating with their target audience.” The Board found that the symphony musicians
had other means of communicating with their target audience, because they could
distribute leaflets on a public sidewalk across the street from the performance
arts center. The Board also noted that musicians could have used other channels
to convey their message, such as social media, newspapers, television, and
radio.
Tobin Center for the
Performing Arts is yet another example of the Trump-controlled NLRB scaling
back some of the broad employee rights granted by the Obama-controlled NLRB. Going
forward, employers and property owners that have groups of contractors and
licensees working on their properties will have greater ability to enforce
their property rights against non-employees seeking to call attention to
various labor grievances.
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